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Allegation

Whilst registered with the Health and Care Professions Council and during the course ofyour employment with Kent County Council, you:

Between April and June 2017, behaved inappropriately towards Colleague A, in that you:

a) On or around 12 May 2017, put your hand on Colleague A's bottom and/or her right breast'b) On or around 12 May 2017, told Colleague A that you had been watching pornographyfeaturing women of her size and had 'been having a good time', or words to that effectc) On an unknown date at the beginning of May 2017, you suggested to Colleague A thatyou book a hotel room for you both, or words to that effect, which she declined.d) On or around 30 May 2017, sent Colleague A a text message which contained the postcode for a Travelodge hotel and/or sent further text messages to her personal mobile with regards to the Travelodge Hotel that she had previously declined to attend.e) On or around 5 June 2017:

i. talked to Colleague A about pornography; and/orii. placed your hand down Colleague A's top; and/oriii. touched Colleague A's breast under her bra; and/oriv.stated that 'they didn't disappoint', or words to that effect;

f) On or around 5 June 2017, attempted to give Colleague A a hug;g) On or around 6 June 2017, made lewd and/or inappropriate comments and/or gesturesabout the bread rolls Colleague A was holding;

3. On an unknown date, behaved inappropriately towards Colleague F, in that you:

a. Talked to Colleague F about the information set out in Schedule Ab. Talked to Colleague F about your sex life with your partner.

4. The behaviour described at paragraph 1 was sexually motivated.5. The matters described at paragraphs 1-4 constitute misconduct.6. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters:

Service

1.The Registrant did not appear and he was not represented. The Panel was satisfied that notice of the hearing had been served on the Registrant at his registered address on 17 June 2019. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been posted to the address on the register.

Proceeding in absence

2.The Registrant had sent an email to the HCPC on 11 September 2018, in which he acknowledged the proceedings and stated that he was not planning to attend the hearing or to be represented. He denied the allegations of sexual motivation or misconduct and expressed his view that the HCPC had already prejudged the outcome of the hearing. The Registrant had not responded to the HCPC’s subsequent attempts to contact him.

3.On behalf of the HCPC, Ms Eales applied for the hearing to proceed in the absence of the Registrant on the basis that he had been notified of the date, time and location of the hearing at his registered address. Ms Eales submitted that the Registrant had waived his right to appear and that it was in the public interest for the hearing to proceed expeditiously.

4.Having considered the HCPTS Practice Note on Proceeding in Absence and accepted the advice of the Legal Assessor on the case of GMC v Adeogba [2016] EWCA Civ 162 (“the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance”), the Panel was satisfied that the Registrant had received reasonable notice of today’s hearing and had waived his right to appear. The Registrant had not applied for an adjournment. There was no indication that he would attend at a later date if today’s hearing were to be adjourned. The Panel noted the overriding public interest in dealing with matters in a timely manner. In balancing the Registrant’s interest and the public interest, the Panel decided that the matter should be heard in the absence of the Registrant. The Panel was mindful of its duty to ensure a fair hearing and to protect the Registrant’s interests by testing the evidence and by taking account of his denial of the allegations in his internal disciplinary hearing and in his email to the HCPC of 11 September 2018.

Hearing in private

5.Matters relating to the private life of the Registrant form the particulars of paragraph 3 of the Allegation. There were other references to the health and personal circumstances of certain witnesses in the evidence. Rule 10 of the Conduct and Competence Committee Rules enabled whole or part of the hearing to be held in private for the protection of the private life of the Registrant or witnesses. The Panel therefore determined that any references to the private life of the Registrant or the health of any witness should be heard in private.

Background

6.The Registrant was appointed as a Team Manager of the 18 Plus Service at Kent County Council (KCC) from 28 October 2016. At the time he had been a Social Worker for 29 years. He had worked for KCC since at least 2014 and was employed as a permanent member of staff from October 2016. He worked with young people over the age of 18 or ‘care leavers’. He was responsible for managing personal advisors and social workers within the service. The Registrant’s line manager was NC, the interim Head of Service of the 18 Plus Service.

7.In June 2017, Colleague A, an Accommodation Officer at KCC, made a complaint regarding the Registrant’s conduct towards her. She alleged that something had happened with the Registrant and alluded to this being sexual. She then wrote down her specific concerns about his conduct. PA, a Service Manager at KCC, was subsequently appointed to investigate the complaint. She interviewed Colleague A and other witnesses, including Colleagues E and F. The Registrant was suspended from his employment on 16 June 2017 pending the outcome of the investigation.

8.PA interviewed the Registrant on 18 July 2017 and 8 September 2017. He said that he had no sexual conversations with Colleague A with the exception of one conversation relating to her husband that she had initiated. He admitted sending her a text message about Travelodge but he said that related to a request to check on the hotel for a family friend who was going to stay there. He denied being alone in a room with her or having any physical contact with her. He was re-interviewed on 8 September 2017. He did not think that he had had any inappropriate sexual conversations with Colleague F. He was not specifically asked about Colleague E’s disclosure that he had stroked her shoulders and adjusted her strap.

9.The allegations raised potential breaches of KCC’s Dignity and Respect at Work Policy in relation to basic expected standards of behaviour within the workplace. The Registrant’s professional record contained no previous complaints or concerns of this nature. It is recorded by NC the interim Head of Service that the Registrant held an exemplary record as a team manager.

10.There was a disciplinary hearing on 27 October 2017. The Registrant attended and denied any inappropriate or unprofessional behaviour. The specific findings and conclusions of the disciplinary hearing were redacted from the bundle and were not made known to the Panel during the hearing.

Decision on the Facts

11.The Panel heard oral evidence from PA who had investigated the allegations and from Colleagues A, E and F. A summary of the oral and written evidence in relation to each particular of the allegation is set out below, together with the Panel’s findings on the facts.

12.The Panel was able to assess the evidence of PA and Colleagues A, E and F and the reliability of their testimony. The Panel found PA to be an open and helpful witness, although her evidence was limited to reporting on the internal investigation, which had a limited remit. She could not give direct evidence of incidents that she had not herself observed. The Panel’s assessment of Colleague’s A, E and F is contained within its findings of facts below.

13.Ms Eales submitted that Colleague A had given a clear and consistent account of events and that her disclosure to Colleague E supported her credibility. Her reluctance to make a complaint was understandable because she was concerned what others, including her husband and her colleagues, might think of her and she did not want to cause trouble or embarrassment and that she had no motive to lie. She contended that Colleague A’s allegations described conduct that was either sexual in its nature or which could be construed as sexual because of the overall circumstances. She further submitted that Colleagues E and F gave clear and credible evidence of the Registrant’s inappropriate and over familiar conduct.

14.The Panel accepted the advice of the Legal Assessor that they should apply the civil standard of proof and that the burden of proving the case was on the HCPC. The Panel noted that the Registrant denied all particulars of the allegation with the exception of 1(g) relating to Colleague A at his disciplinary hearing. It took into account his response to the HCPC in his email dated 11 September 2018 in which he maintained that he had not acted towards Colleague A as alleged. He said that any comments made by him in the presence of Colleagues A, E and F were not inappropriate. It was for the Panel to make their findings of fact on the evidence as a whole.

15.The Registrant did not attend to give evidence but the Panel read and took account of the representations that he made during the internal disciplinary proceedings and his emphatic denial of the allegations that was repeated in his email dated 11 September 2018. The Panel also had regard to the Registrant’s good character in 29 years of unblemished service in the profession and the absence of any previous complaint of this nature. The Panel made no adverse inference from the Registrant’s absence and asked questions of the witnesses to test the evidence of the complainants and to put the Registrant’s case to them.

16.In deciding whether the misconduct alleged was sexual or sexually motivated, the Panel had regard to the definition of ‘sexual’ in Section 78 of the Sexual Offences Act 2003, namely that touching or any other activity is sexual if a reasonable person would consider that:-

(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

17.The Panel considered whether conduct was ‘inappropriate’ by having regard to the standards of behaviour that were to be expected from professional colleagues in their dealings with each other in the work place.

Paragraph 1 (Colleague A)

18.Colleague A adopted the content of her witness statement dated 23 October 2018 as representing a true account. She was employed at KCC as an Accommodation Support Advisor from September 2015. Her role was to find accommodation for young people aged between 16 and 21 years. She worked alongside staff from the 18 Plus Care Leaving Service in an open plan office. The Registrant was not her direct manager but she knew him as a manager in the office and had a working relationship with him.

19.Colleague A told the Panel that the Registrant was known to make ‘jokey’ comments to other staff. He liked to banter with other staff in the office and he was approachable. These comments were supported by other witnesses. She said she became increasingly uncomfortable with the personal nature of his comments and actions towards her in May and June 2017. She said that she did not feel that she had encouraged him at all. She initially mentioned her concerns to a police officer, whom she knew through work, on 7 June 2017. She told the Panel that she was advised by the police to raise the issue at work or report it to the police. She then reported the matter to her manager, AM, on 14 June 2017. She was interviewed by PA as part of the internal investigation on 27 June 2017.

20.Colleague A told the Panel that the effect of his actions has been to make her feel paranoid and suspicious at work and unable to trust those in senior positions.

21.The Panel found that there were some inconsistencies in Colleague A’s account of events and that parts of her evidence lacked clarity. However, she gave clear evidence under oath that she recalled that the Registrant made sexual comments and that he had touched her on two occasions. She had reported the events within a reasonable period of time.

Particulars 1a) and 1b)

22.The incidents alleged in particular 1a (touching Colleague A’s bottom and/or right breast) and particular 1b (speaking to her about pornography) occurred on the same occasion on 12 May 2017. Colleague A said that the Registrant asked to speak to her and suggested that they go into the first aid room at the office. He spoke to her about watching pornography of women of her size, saying that it turned him on and he had been having a good time. Colleague A was embarrassed and raised her hands to indicate that he should stop talking like that. He then took a step towards her and put one hand on her bottom and the other hand on her right breast. She felt intimidated because he is a large man and this took place in a small room. She said that she told him to ‘fuck off’ and left the room. She subsequently left the office on a joint visit with a senior colleague. She said she had not done anything to encourage him. She told the Panel that she did not report this incident immediately because she was uncertain what to do and she was due to go on holiday with her husband the next day and did not want to disrupt that.

23.The Registrant denied inviting Colleague A into a private room or touching Colleague A in this way or speaking to her about pornography when these matters were raised in the internal investigation. The Registrant provided PA with a written account of the events of 12 May 2017 in which he maintained that Colleague A had asked him to go to a small meeting room to discuss a work matter but the conversation had turned to her discussing personal issues with him. He maintained this account and his denials in his email dated 11 September 2018.

The Panel’s findings in relation to Colleague A – Particulars 1a & 1b

24.The Panel noted that Colleague A had reported this incident in the private room, which occurred on 12 May 2017, after her return from holiday in June 2017 and that she had given a consistent account of the touching and what the Registrant said in the internal investigation in 2017 and at this hearing. The Panel noted that she had reported all the significant elements of this incident to her line manager on 14 June 2017. The Panel therefore accepted Colleague A’s evidence that the Registrant had touched her as alleged and that he had spoken to her about watching pornography that featured women of her size and had been having a good time or words to that effect. This was clearly conduct that was inappropriate and sexual in its nature. The Panel therefore found particulars 1a and 1b proved on the balance of probabilities.

Particular 1c)

25.Colleague A’s evidence was that the Registrant had beckoned her to his desk at the beginning of May 2017 and suggested to her, ‘Can I take you to a hotel when you come back from holiday’. She was upset by this suggestion because it was not something that she would do. She said that she declined the invitation, then he said she would miss him when she was away. Colleague A said this was the first occasion that the Registrant had mentioned a hotel, but that it was not the first or only time he had said to her that he would like to have sex with her. She told the Panel that she did not want to report this at the time because the Registrant was a manager and that she respected her managers. The Registrant denied making this suggestion to Colleague A during the internal investigation.

The Panel’s findings in relation to Colleague A – Particular 1c

26.The Panel accepted on the balance of probabilities that the Registrant had made the suggestion to Colleague A about taking her to a hotel. This was clearly an inappropriate suggestion that was sexual either in its nature or because of the circumstances. The Panel was not however persuaded that Colleague A expressly declined the invitation, because Colleague A’s evidence lacked clarity on this point. She said that she was trying to be polite and to let him down gently. In making that finding, the Panel also took account of Colleague A’s similar lack of clarity in her response to the Registrant’s suggestion about going to a hotel room in particular 1d. The Panel therefore found particular 1c proved, but only to the extent that the Registrant had made the suggestion that he book a hotel room for them.

Particular 1d)

27.On another occasion in May 2017 it is alleged the Registrant told Colleague A by text that he had booked a Travelodge for 30 May 2017 when she returned from holiday. When she returned from her holiday on 30 May 2017, she said she switched on her work mobile phone to find that the Registrant had texted her the Rainham postcode for the Travelodge. He then sent her further text messages about this. She responded by making various excuses. She said she had deleted his and her own messages because she did not want her husband to see them and she said that the Registrant’s actions made her feel very uncomfortable.

28.The Registrant accepted during the internal investigation that he sent a text message about a hotel to her, but he said that the purpose was to scope out the area for his friend who was coming to stay. Colleague A did not accept this suggested reason for the text message when it was put to her at the hearing.

The Panel’s findings in relation to Colleague A – Particular 1d

29.Unlike other aspects of her evidence, Colleague A lacked clarity in her evidence about this particular. The Panel therefore found the evidence on this particular to be unsatisfactory. Relevant text messages had been deleted and those that remained were inconclusive. It was also unclear, as it was in relation to particular 1c, that the Registrant had expressly declined the invitation. She could not really explain to the Panel why she had not expressly refused to go given that she told the Panel that she had previously told him quite directly to ‘fuck off’. The Panel therefore found that particular 1d was not proved on the balance of probabilities.

Particulars 1e) – i) to iv) and 1f)

30.Colleague A said that on 5 June 2017, the Registrant asked to speak to Colleague A and led her into a side meeting room in the office that is often used when colleagues wish to speak to each other in private. She said that as he was speaking, he tried to give her a hug (particular 1f). She took a step back and raised both her hands. She told the Panel that he stopped what he was doing but he remained physically close to her.

31.Colleague A said the Registrant then started speaking to her about pornography (particular 1e(i)). He put his hand down her top (1e(ii)) and touched the top of her right breast (1e(iii)) and told her that ‘they didn’t disappoint’ (1e(iv)). She said that she told him to ‘fuck off’ then pushed past him to leave the room. She told the Panel she looked down to make sure that her clothing was in order and noticed that he was aroused. She told the Panel that she was very upset and that within an hour she left the office on a work visit and did not return to work that day.

32.The Registrant denied the alleged physical contact during the course of the internal investigation. He accepted there was a meeting at which she spoke about her difficult weekend.

The Panel’s findings in relation to Colleague A – Particulars 1e & 1f

33.The Panel considered that Colleague A was not entirely consistent about this incident for example in relation to the length of time over which he had touched her breast. However, the Panel accepted that she had provided a clear recollection of him touching her breast under bra, commenting on her breasts, and speaking about pornography. This was consistent with the Registrant’s earlier conduct on 12 May 2017, which the Panel has found to be proved. Colleague A gave a generally consistent account of this incident when she described it to Colleague E in her phone call to her on 9 June 2017. This conduct was clearly inappropriate and sexual in its nature. The Panel therefore found that all the elements (i-iv) of particular 1e were proved on the balance of probabilities.

34.In relation to particular 1f (hugging Colleague A), the Panel found that the Registrant did attempt to hug Colleague A, but noted that this was before the sexual conduct in particular 1e and that it was done in the context of comforting her in relation to her difficult weekend. The Panel was therefore not persuaded that this attempt at physical contact was inappropriate behaviour or sexually motivated. Accordingly, the Panel determined that particular 1f was not proved on the balance of probabilities.

Particular 1g

35.On about 6 June 2017, Colleague A returned to the office from shopping at Asda with a packet of bread rolls. She had a colleague, EH, with her. Colleague A told the Panel that the Registrant asked what she was cooking for his dinner, then he squeezed the packet of bread rolls she was holding and remarked, “I like a good pair of baps”. Colleague A said she made her excuses and walked away. Colleague A denied that she bantered with the Registrant by saying something like “So are you saying you want some of my baps?” as suggested by EH and TC during the internal investigation.

36.The Registrant accepted making a comment about baps as soon as he was interviewed about this during the internal investigation. He also accepted in his appeal against the internal disciplinary outcome and in his email to the HCPC dated 11 September 2018 in which he maintained that it was a silly joke in bad taste.

The Panel’s findings in relation to Colleague A – Particular 1g

37.The Panel noted that this incident occurred in the presence of others, including EH and TC. Their evidence has not been tested at this hearing, but their accounts to the internal investigation in 2017 suggested that this was a much more light-hearted incident. The Panel therefore determined that this level of banter fell short of being lewd or inappropriate. Particular 1g is not therefore proved on the balance of probabilities.

Paragraph 2 (Colleague E)

38.Colleague E adopted the content of her witness statement dated 25 July 2019. She started working for the Registrant, who was her manager, in June 2016. She was employed as a care personal adviser. She had a good professional relationship with him as her manager.

Particulars 2 a) and b)

39.Colleague E gave evidence of two occasions on which she said the Registrant made physical contact with her that she regarded as over familiar and uninvited. She said that after working for him for a period of time, he had briefly stroked her shoulders whilst she was wearing a vest top (2a). She did not like this but she did not say anything because she was taken aback by it. On a subsequent occasion, he straightened a strap on her vest top (2b) whilst he was having an otherwise professional conversation with her. She said that he had remarked her strap was twisted and straightened it himself when he could have suggested that she straighten it out.

40.Colleague E’s view was that a male manager should not initiate that kind of physical contact with a female colleague. She maintained that she was not herself perturbed by such behaviour and she told the Panel that these incidents had not been repeated. She said that the Registrant often engaged in banter that was flirtatious in its nature with her and others in the office but he was always professional.

41.The Registrant was not specifically asked about this allegation during the internal investigation, although it is clear from his email dated 11 September 2018 that he denies this factual allegation in relation to Colleague E. The Panel therefore treated the allegation as disputed and required the HCPC to prove it to the required standard.

The Panel’s findings in relation to Colleague E – Particulars 2a & 2b

42.The Panel found that Colleague E gave a clear and credible account of events and conversations. She was frank when she could not recall specific points. She did not embellish her account of what had happened in relation to the Registrant touching her vest or adjusting her strap. In relation to Colleague A, she did not observe any inappropriate conduct directly. She simply recounted what Colleague A had told her.

43.The Panel found that Colleague E was clear and credible in her account of events and determined that the touching alleged in particulars 2a and 2b was proved on the balance of probabilities. The Panel accepted that Colleague E found the Registrant’s actions to be too familiar and she was taken aback by what he had done. The Panel determined that that brushing a colleague’s shoulder and adjusting her strap in the way that was described was inappropriate because it was overly familiar and not the kind of physical contact that was to be expected from a manager towards a female colleague. The Panel noted that such physical contact was not repeated on other occasions and that Colleague E told the Panel that the Registrant was otherwise professional in his dealings with Colleague E such as in one to one supervision meetings. The Panel therefore concluded that the conduct, was inappropriate.

Paragraph 3 (Colleague F)

44.Colleague F has been employed at KCC as a Social Worker since 2014. Although she had seen the Registrant in the office she had no professional interactions with him until August 2016 when she transferred a high risk case. She said that the case required both her and the Registrant to travel from Kent to Southampton for meetings on two occasions that were about six months apart. She gave him a lift in her car on both occasions.

Particulars 3a) and 3b)

45.On the second occasion in 2016, on the way back from Southampton, Colleague F said that the conversation had progressed through a general discussion about age, going to the gym. She said that the content of the conversation then changed immediately and he did not mention these matters again on the journey. She also said that this type of conversation did not happen again.

46.The comments had been made in a conversational and matter of fact way but they made Colleague F feel uncomfortable. Colleague F acknowledged that the Registrant could be ‘cheeky’ or ‘lippy’ and she did not feel intimidated by what he had said, but she regarded this as a strange topic of conversation to raise with a female colleague. She did not report what he had said, but she mentioned it to two female colleagues then a male colleague, who told her that the Registrant was open with him too. Colleague F had no concerns arising from any of her other dealings with the Registrant. She told the Panel that she thought that others might misconstrue his behaviour if they were younger, more vulnerable or from a different culture.

The Panel’s findings in relation to Colleague F – Particulars 3a & 3b

47.The Panel noted that this was a relatively brief part of a longer conversation during a car journey and that they then returned to other conversations about work and that there was no further repetition of this subject matter in subsequent contacts with Colleague F. She said that the Registrant was otherwise professional in his dealings with her and other members of staff.

48.The Panel found Colleague F’s evidence to be credible, balanced, fair and clear in her recollection of events in the car. Her evidence at the hearing was consistent with her earlier account of the event. The Panel therefore found that there was such a conversation in the car as alleged particulars 3a and 3b. The Panel further found that the personal nature subject matter of the conversation was inappropriate between professional colleagues. Particulars 3a and 3b were therefore proved on the balance of probabilities.

Paragraph 4 – the behaviour described at Paragraph 1 was sexually motivated

49.The Panel had in mind the definition of ‘sexually motivated’ given in Basson v GMC [2018] EWHC 505 in which Mostyn J stated that a sexual motive may be inferred from conduct done in pursuit of sexual gratification or in pursuit of a sexual relationship. In making such a finding, the Panel must have regard to inference or deduction from the surrounding circumstances and the evidence as a whole.

50.The Panel has found that the conduct alleged in particulars 1a, 1b, 1c and 1e was sexual. The nature of the conduct was such that it must have been done with a view either to sexual gratification and/or in pursuit of a sexual relationship. The Panel therefore determined that Paragraph 4 was proved in relation to particulars 1a, 1b, 1c and 1e on the balance of probabilities.

Decision on Grounds

51.Ms Eales for the HCPC submitted that this was a case of misconduct because the Registrant was an experienced Social Worker who had failed to maintain professional boundaries. She contended that his conduct in dealing with professional colleagues fell far below what was proper in the circumstances.

52.The Panel accepted the advice of the Legal Assessor. The Panel had in mind the definition of misconduct in Roylance v General Medical Council [2011] 1 AC 311 to the effect that misconduct is “some act or omission which falls short of what is proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.” The Panel was advised that misconduct must be serious misconduct of a kind that would be regarded as deplorable by fellow practitioners, that mere negligence was insufficient, and that isolated incidents were less likely to amount to misconduct, although they may do so.

53.The Panel also had regard to the further guidance on the meaning of misconduct that was set out in Remedy UK Ltd v General Medical Council [2010] EWHC 1245 (Admin), misconduct is “sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise” or “conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the [professional] and thereby prejudices the reputation of the profession.”

54.In considering whether the ground of misconduct was made out, the Panel reviewed each of its individual findings of fact against the Registrant. The Panel has found that the Registrant behaved in a manner that was sexually motivated as set out in particulars 1a, 1b, 1c and 1e.

55.The Panel acknowledges that there was evidence that the Registrant and Colleague A developed a working relationship that involved her communicating personal information to him about her circumstances and events in her life. One witness, PA, agreed that the relationship between them appeared to have been flirtatious. However, the Registrant was a professional manager of long service whilst Colleague A was a more junior colleague. Colleague E told the Panel that Colleague A lacked confidence and that she was probably flattered by the attention that the Registrant devoted to her. Colleague A confirmed that she had felt flattered.

56.There was a clear breach of professional boundaries in the working relationship between the Registrant and Colleague A. The Registrant’s sexual advances and suggestive comments were inappropriate and unacceptable. The Panel found that the Registrant had breached standard 9.1 of the HCPC Standards of Conduct, Performance and Ethics, namely that a practitioner must make sure that their conduct justifies the public’s trust and confidence in himself or his profession.

57.The Panel therefore determined that the Registrant’s conduct as proved in relation to particulars 1a, 1b, 1c and 1e fell far short of the standards that are to be expected of a Social Worker.

58.In relation to particulars 2a and 2b, which related to briefly stroking Colleague E’s shoulders and adjusting the strap on her vest top, the Panel has found that this was inappropriate physical contact between colleagues. The Panel also noted that the Registrant was otherwise professional in his dealings with Colleague E both before and after these incidents and that she did not feel intimidated by him. The Panel does not therefore find that this inappropriate contact, whilst unacceptable, was sufficiently serious as to amount to misconduct.

59.Similarly, in relation to particulars 3a and 3b, which related to a brief conversation about private matters in the car with Colleague F, the Panel has found that that this was an inappropriate subject matter for conversation between professional colleagues. The Panel also noted that the Registrant terminated the conversation when asked to do so by Colleague F. The Registrant was otherwise professional in his dealings with Colleague F both before and after these brief incidents. The Panel therefore finds that this brief but inappropriate personal conversation, whilst unacceptable, was not sufficiently serious as to amount to misconduct.

Decision on impairment:

60.The Panel bears in mind the submissions made on behalf of the HCPC and the advice of the Legal Assessor and HCPTS Practice Note on Impairment. Ms Eales for the HCPC submitted that the conduct, if proved, was such as to pose a risk to other colleagues in the absence of evidence of insight and such as to undermine public confidence in the profession.

61.The Panel took account of the Registrant’s unblemished service record and evidence from former colleagues he was otherwise appropriate in his professional dealings with colleagues. There is no indication that his competence as a manager was ever in question.

62.The Panel has found that the some of the Registrant’s conduct was sexually motivated and that it was so serious as to amount to misconduct. In considering the personal component and whether the Registrant’s conduct poses a risk to others, the Panel noted the Registrant’s own recognition in his email of 11 September 2018 that the conduct alleged against him would amount to sexual assault, if proved. The Panel has no information as to whether he understands the consequences of his actions because he has not recently engaged with the regulatory process. Whilst the Panel draws no adverse inference in relation to the Registrant’s absence from the hearing, it has not been able to assess whether he has developed any insight into his conduct. The Panel cannot therefore have confidence at this stage that his misconduct would not be repeated.

63.In relation to the public component, the Panel also reminded itself of the public component in Cohen v General Medical Council [2008] EWHC 581: “the need to protect the individual and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour which the public expect…and that the public interest includes, amongst other things, the protection of service users and the maintenance of public confidence in the profession.”

64.The nature of the misconduct, involving sexual advances towards a colleague and suggestive comments, is such that public confidence in the profession would be undermined if no finding of impairment were made. A reasonable member of the public would expect a finding of impairment in the circumstances of this case in order to uphold proper standards of conduct and behaviour.

65.The Registrant’s fitness to practise is therefore impaired on both the personal and public components.

Decision on Sanction

66.Mr Fox-Smith for the HCPTS reminded the Panel of the principles to be applied when deciding on the appropriate sanction. The Panel considered the Sanctions Policy (as revised in March 2019) of the HCPC and accepted the advice of the Legal Assessor.

67.The Panel commenced its deliberations by identifying the mitigating and aggravating factors before reaching a final decision on sanction.

68.The mitigating factors are as follows:

•The Registrant had a career of 29 years as a Social Worker and there were no previous concerns about his conduct or competence•There was independent evidence that he was a professional and capable manager in his usual dealings with colleagues•The misconduct related to one colleague with whom he had developed a relationship in which she felt able to confide in him about personal issues•There were two instances of sexual misconduct with one colleague, but they took place over a short period of time.

69.The aggravating factors are as follows:

•Sexual misconduct•Breach of professional boundaries with a more junior colleague•No evidence of remorse or insight at this stage with a consequent risk of repetition of the misconduct.

70.The Panel then considered the available sanctions and the principles in the Sanctions Policy. It had in mind that that the purpose of the sanction was to protect the public and to maintain public confidence in the profession and the regulatory process. The Panel also had regard to the principle of proportionality in determining the appropriate sanction.

71.The Panel had regard to paragraphs 76-77 of the Sanctions Policy. Paragraph 76 states: Sexual misconduct is a very serious matter, which has a significant impact on the public and public confidence in the profession. Paragraph 77 states: Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning.

72.A finding of sexual misconduct is too serious to make nor order or to consider mediation. The Panel then considered whether to impose a Caution Order, but decided that it was also inappropriate in this case, because of the sexual misconduct and there was no evidence of insight or remediation.

73.The Panel then considered whether a Conditions of Practice Order was appropriate or workable, but concluded that the absence of any information about the Registrant’s current circumstances or employment and the absence of evidence of insight into his conduct made such an order impossible to formulate. Furthermore, a Conditions of Practice Order requires engagement on the part of the Registrant, but there has been no recent engagement with the HCPC in this case. The Panel also found that such an order would not meet the gravity of the misconduct in this case in any event.

74.The Panel considered whether a Suspension Order was appropriate after taking into account the guidance at paragraph 121 of the Sanctions Policy. The concerns in this case represent a serious breach of professional standards. This is also a matter of sexual misconduct, which requires a more serious sanction as a matter of principle.

75.Whilst the absence of insight and the nature of the misconduct might have enabled the Panel to go further and to impose a Striking Off Order, there were particular factors in this case that persuaded the Panel not to take that course. The Panel recognised there was no evidence of insight into his conduct at this stage, but considered whether the Registrant’s misconduct was remediable. His actions related to a particular attachment that he had formed with one colleague. In his text message of 4 June 2017 he appears to accept that he might never be able to further develop the relationship with Colleague A. Even though he denied the allegations he has also recognised that touching in the way described would amount to sexual assault and be an extremely grave matter. In those circumstances the Panel therefore determined that the Registrant’s failings are capable of remedy, so it is not necessary to impose the most severe sanction.

76.The Panel therefore determined that a Suspension Order of 12 months duration was the appropriate and proportionate sanction in order to protect the public and reflect the gravity of the misconduct. The Panel concluded that this order would maintain the confidence of the public in the regulator and the profession. A member of the public with a full appreciation and knowledge of the particular facts of this case would understand why the Panel had determined this was the appropriate sanction.

77.A Review Panel would be greatly assisted by the Registrant engaging with his regulator and providing evidence as to his level of insight and his understanding of the importance of maintaining professional boundaries at work.

Order

The Registrar is directed to suspend the name of Mr Robert Robinson from the register for a period of 12 months from the day this order comes into effect.

Notes

Interim Order

1.Mr Fox-Smith applied for an Interim Order on the grounds that it was necessary to protect the public and otherwise in the public interest. The Panel accepted the advice on the Legal Assessor and had regard to the principles in the HCPTS Practice Note on Interim Orders.

2.The Panel determined to hear and decide the application for an Interim Order in the Registrant’s absence. In making its decision, the Panel adopted its reasoning for hearing the substantive case in the absence of the Registrant and took account of the advance notice given to the Registrant of the possibility of an Interim Order application in the Notice of Hearing.

3.The Panel determined that an Interim Order was necessary to protect the public and that it was in the public interest in view of its findings and order in the substantive case. In considering the form of the order, the Panel determined that an Interim Suspension Order was proportionate and appropriate.

4.The Panel further determined that an Interim Suspension Order for a period of 18 months was appropriate in the event of the Registrant seeking to appeal against the Panel’s findings or order.

Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.